Is an Endurance Athlete’s Fitness a Disadvantage in a DUI?
Under California Vehicle Code § 23152(b) a constant ratio is applied to every person’s breath content of alcohol to calculate the percentage of blood alcohol for DUI analysis. This constant is known as a partition ratio and it had been the subject of hot debate for years until our legislature stepped in to end the debate.What to Take Away: A person who runs, cycles or swims a lot has larger lungs, which makes the breath test of DUI subject to inaccuracy. The person, especially if a female long distance runner, often is also anemic, which can make one’s breath alcohol much higher than one’s blood alcohol.
Many suspect the legislative action was out of concern that a persuasive expert could confuse a jury into believing a drunk person was sober, or at least not as drunk as a roadside or police station breath test indicated. Such an expert would testify that every person has different physical characteristics from everyone else, so a “one size fits all” approach is flawed for overlooking one person’s large lung capacity, low hematocrit, diabetes, lower breath temperature, less rapid breathing pattern, etc.
The court in Vangelder seems to reopen the door that the legislature slammed shut in drafting 23152(b) and McNeal thereafter tried to lock. Vangelder follows McNeal, but with a twist. Vangelder ruled that the lower court must allow in evidence to challenge the physiological variables that can affect the breath given before the partition ration is applied.
Vangelder specifically acknowledged that such factors could include an individual’s breathing patterns, body temperature, blood hematocrit and breath temperature. In an endurance athlete, such characteristics can vary considerably from the general population. Vangelder implied that evidence of other factors could also be introduced before the partition ratio was applied to show that an individual defendant’s breath sample may contain considerably more alcohol than an average person, causing the machine to calculate an artificially high, inaccurate blood alcohol level.
In highly conditioned endurance athletes, the lungs have developed a higher capacity to transport oxygen and to also expel waste products from the blood. Therefore, ethanol, a waste product, would be expelled at a higher rate and in far higher volume because of the increased alveolar structure in an endurance athlete.
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